To be or not to be: Do we have the right to choose?

By Usha Amulya, Local Coordinator 2017-18

Have you ever come across a patient who is terminally ill and whose vital signs are at odds, lapsing in and out of unconscious state, pleading for death to administer them with some medicine or the other to end their life, before finally succumbing to a vegetative state?

“To be or not to be” is seldom a question that rests at the hands of an individual or their kith and kin in India, especially when one is terminally ill and living would only prolong the suffering of such an individual.  As defined by the Oxford Dictionary, Euthanasia is a painless killing of a patient suffering from an incurable and painful disease or in an irreversible coma.

In India, it is the Aruna Ramchandra Shanbaug vs Union Of India & Ors case that brought the attention of Euthanasia in India when Pinki Virani, a social activist who claimed to be the friend of Aruna Shanbaug filed a writ petition to withdraw medical support to terminate the suffering of Aruna Shanbaug, a nurse who was working at King George Hospital in Mumbai who remained in vegetative state ever since the sexual assault by the ward boy.

Further, this case distinguished active euthanasia from passive euthanasia; and voluntary from non- voluntary euthanasia. Active euthanasia entails the use of lethal substances or forces to kill a person whereas, passive euthanasia entails withholding of medical treatment for continuance of life. Voluntary euthanasia is where consent is taken from the patient whereas non-voluntary euthanasia is where the consent is unavailable.

Although the petition was dismissed on other considerations, the Supreme Court while ruling out active euthanasia, partially permitted passive euthanasia. It must be noted that in this case, the court observed that since medical science is advancing fast, doctors must not declare a patient to be a hopeless case unless there appears to be no possibility of any improvement by some newly discovered method in the near future.

During the course of this case, the concept of a ‘living will’ came up – wherein a person can write a will to terminate his life, in case of serious injury or harm which may threaten the termination of the individual’s life and can be presented to the hospital if the need arises. This concept has been widely debated, and those against often talk about how what is considered to be incurable in the present may become curable in the near future; as well as how this can be misused by family for gaining inheritance.

In Kharak Singh vs. State of Uttar Pradesh, Article 21 was raised which upholds a person’s Right to Life, which includes a life with dignity. The Court observed that a terminally ill patient in vegetative state would not uphold this principle of living with dignity and would only prolong the suffering of such a patient.

In Common Cause vs. Union of India which was referred to the Constitution Bench in 2014, comprising Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, said that Right to Life does not mean right to die. However, a dignified life would certainly include right to die with dignity, as advance directive would take effect once a medical board affirms that the patient’s comatose state is irreversible.

The 241st Report of the Law Commission examined this issue of passive euthanasia in detail and proposed an amendment to the Medical Treatment of Terminally Ill Patient (Protection of Patients and Medical Practitioners) Bill, 2006 whilst the government established stringent conditions as to how such a decision could be arrived. At this juncture, it should be noted that extending the life of the patient in the hope of future medical advancements, the success of which is uncertain is not a viable option and is inhumane to prolong the suffering of the patient and denying them the right to die with dignity.

Medical advancements require further testing period for approval and as such there is a possibility that present day rules or rules that may be framed may approve that they be tested on these patients which would cause further agony to such patients without their approval given their vegetative state.

Under the Common Cause case, the Supreme Court  in March 2018 recognised the concept of a living will, passive euthanasia, and expanded the interpretation of the Right to Life to include the Right to Die with Dignity. While the living will could be potentially misused, stringent measures could be established to check for its abuse and the possibility of medical advancement should not deter the current legality of euthanasia. The next step for the court will be to consider giving a nod to active euthanasia as well on humanitarian grounds.